Impairment Testing: The New Frontier in Workplace Safety
Guest Post by Bill Current
Current Consulting Group
Note: This article is provided for educational purposes only and should not be relied upon as legal advice. The reader retains full responsibility to ensure compliance with all applicable laws relative to drug testing.
For the better part of four decades employers have been conducting drug testing. And when asked why, the answers are all across the board. Some reasons are obvious. Employers conduct drug testing to comply with state laws or federal regulations or to qualify for certain benefits offered by some states like discounts on workers’ compensation premiums.
Employers also conduct drug testing to improve workplace safety or productivity or to control the costs of doing business, etc. Another reason is to reduce their exposure to liability when employees do bad things while impaired on the job and cause harm to others or property damage.
What does it mean to be impaired by drugs?
“Impairment” is a word that has always been part of the drug testing discussion, but not necessarily well understood. Why? Because a positive drug test result doesn’t necessarily prove, either legally or scientifically, that someone is impaired. Conversely, a negative drug test result doesn’t necessarily mean an individual is not impaired. But with the widespread and ongoing legalization of marijuana, the subject of impairment has taken on a whole new level of importance.
Are there laws that address marijuana use and impairment at work?
A growing number of state marijuana laws require employers to provide some actual evidence of impairment before taking adverse employment action based on a positive test result for marijuana. For example, New Jersey’s recreational marijuana law requires physical signs of impairment to accompany a positive marijuana test. A scientifically reliable objective testing method indicating the presence of cannabinoid metabolites is insufficient to support adverse employment action. However, such a test, combined with evidence-based documentation of physical signs or other evidence of impairment during work hours, may be sufficient to support adverse employment action.
Quoting from the law: "Employers may also choose to use a cognitive impairment test (a consistently repeatable standardized automated test of impairment and/or an ocular scan) as physical sign/evidence to establish reasonable suspicion of cannabis use or impairment." (This comes from published guidance from the New Jersey Cannabis Regulatory Commission 2022).
How can employers identify impairment if not with a drug test?
The drug testing industry is starting to see more and more impairment testing products, software, and systems coming into their traditional market space. These exams provide what drug testing cannot—evidence or proof of impairment with results that may or may not be related to drug use. Many of these impairment exams are cause-agnostic; the impairment detected could be caused by stress, sleep deprivation, or some other reason.
However, some impairment identification technology is actually capable of detecting drug- or alcohol-related impairment. Gaize is such an impairment exam. It performs a series of automated eye tests based on the well-known and proven law enforcement drug recognition expert ocular tests. Gaize renders results within minutes that detect clear indicators of drug and alcohol impairment. In conjunction with the results of traditional urine or oral fluid drug testing, employers can use the objective results of the Gaize exam as clear evidence of drug impairment. This is particularly valuable for companies in safety-sensitive industries and for employers grappling with cumbersome requirements in many marijuana-friendly states. Gaize is trusted by top employers in industries like construction, manufacturing, mining, logistics, and more.
Are employes in all states required to do both types of testing?
Keep in mind there are many states that allow employers to move to deny workers’ compensation benefits to a worker who tests positive for drugs following an accident. In these cases, drug testing remains essential. However, outside of specific workplace accident scenarios where a workers’ comp claim is involved, a drug test result in combination with a fitness-for-duty or impairment exam result may give employers enough evidence to follow company policy and take some form of adverse employment action.
Employers are also being subjected to lawsuits with respect to taking action against cannabis using employees based on only a chemical drug test. In brief, employers are being held accountable for not demonstrating that employees were impaired in the workplace in states with legal cannabis. Since THC and its metabolites linger in the body for days or weeks, courts are holding that workers have a right to have these substances in their bodies. Ultimately, these cases create a mandate that employers in states that have legal cannabis to consider impairment before taking adverse employment action. These are additional paths being used to require employers to have proof of impairment before terminating a worker. There are examples from states including (but not limited to) Massachusetts, Connecticut, Arizona, and more.
What should an impairment policy consider?
As is the case with drug testing, a company that uses impairment exams should have a written policy that explains when such exams will be required, what technology will be used, how exams will be conducted, and the consequences for being identified as impaired.
An impairment policy should also take into consideration any applicable state or federal laws. Also, the policy should be clear that the company intends to comply with these laws and that it will not discriminate in administering impairment exams, with an emphasis on observing the rights of individuals with disabilities. If an employee claims a disability, the policy should explain how the company will engage in an interactive process to determine what protections or accommodations to which the employee may be entitled.
What are some examples of laws that explain impairment testing?
Here's an example. The California Fair Employment and Housing Act (FEHA) prohibits discrimination based on mental disabilities and requires employers to provide reasonable accommodations for employees with mental health conditions. Employers cannot require impairment testing for mental health unless it directly interferes with the employee's ability to perform essential job functions.
Also, The Americans with Disabilities Act (ADA) may come into play, which requires an employer to conduct medical exams only if it is directly related to the job and if there is a business necessity. This may limit these exams to safety-sensitive positions. Employers should explore the possible ways in which the ADA may or may not apply to impairment exams.
Some state laws related to privacy may apply to impairment testing. For example, California's privacy law limits drug testing to instances where an employer has individualized suspicion, or to those in safety-sensitive positions. This could potentially apply to impairment testing as well.
Ask a Legal Consultant
Yvette Baker, Senior Legal Consultant with the Current Consulting Group, said: “I anticipate that impairment testing may incur less liability than urine drug testing because it is less invasive and directly relates to an employee's ability to perform their job.”
Regarding medical marijuana users, she added: “This is dependent on state law, but in states that do require accommodations, this technology can help identify employees who are actually impaired regardless of the reason.”
Conclusion
As the workplace continues to evolve alongside shifting drug laws and societal attitudes—especially around marijuana—employers must rethink how they approach the issue of impairment. Traditional drug testing remains a vital tool, particularly in post-accident scenarios or for compliance with state and federal regulations. However, it is no longer enough on its own. The rise of impairment testing technologies offers a valuable supplement, providing real-time, objective evidence of an employee’s ability to function safely and effectively on the job. By integrating both methods within a well-crafted, legally sound policy, employers can better protect their workforce, minimize liability, and adapt to the complex legal landscape surrounding substance use and workplace safety.
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